while an employe therein; each of said offenses being a felony. The ownership of both the ore and the mine was alleged to be in the Small Hopes Consolidated Mining Company, a corporation. Upon this indictment, Roberts was tried and convicted; the jury rendering a general verdict of guilty in manner and form as charged in the indictment, and finding the value of the property stolen to be $120. A motion for a new trial was interposed and denied, and Roberts was sentenced to confinement in the penitentiary for the term of two years. C. C. Parsons and S. P. Rose appeared as attorneys to aid the prosecution. While the jury was being impaneled, Philip O'Farrel, the district attorney, asked to be excused from further service in the case, stating as the reason therefor that he had been "retained in another cause, the facts of which were somewhat interwoven with the facts said to be involved in this case, and that he had a good deal of state business to attend to in Judge KELLOG'S court." The court granted this application, and appointed C. C. Parsons special district attorney to prosecute the case under consideration. Section 1058, Gen. St. 1883, referring to district attorneys, provides as follows: "If the district attorney be interested, or shall have been employed as counsel, in any case which it shall be his duty to prosecute or defend, the court having criminal jurisdiction may appoint some other person to prosecute or defend the cause. And section 1059 provides that, "if he be sick or absent, such court shall appoint some person to discharge the duties of the office until the proper officer resume the discharge of his duties." Taylor & Ashton and Bissell & Gunnell, for plaintiff in error. Alvin Marsh, Atty. Gen., for defendant in error. PER CURIAM. 1. While the grounds upon which the district attorney asked to be excused from prosecuting this case are not very fully stated, there is sufficient, we think, to indicate that a statutory ground existed. It is evident that he regarded, and that the court below regarded, his retainer in another case as a disqualifying fact. So far as the grounds for the action of the court in this respect are disclosed, they do not contradict, but strengthen, the presumption that is always indulged in favor of the action of the trial court. Even if this were not the case, we are not prepared to say that a nisi prius court may not make such an appointment for good and sufficient reasons other than those specified in the statute. 2. A motion to compel a prosecutor to elect upon which count of an indictment he will proceed, when such indictment contains more than one count, each charging a felony, is a matter addressed to the discretion of the trial court. A court of review will not interfere, except, perhaps, where such discretion has been abused. 1 Bish. Crim. Proc. § 454; 1 Whart. Crim. Law, § 423. 3. We see no good reason why witnesses, who have handled and become familiar with the ore taken from a certain mine, may not testify in reference to the same, for the purpose of identifying it, in the same manner and to the same extent as they are allowed to testify as to the identity of other personal property. The extent to which such evidence would be satisfactory and reliable would depend upon the existence of marked characteristics, rendering it easy of identification. Absence of such characteristics would go to the value of the testimony, not to its admissibility. 4. The evidence in the record before us relates chiefly to the charge of larceny contained in the first count of the indictment. It is upon this count the conviction of the prisoner must be sustained, if at all. The chief contention by counsel for the defendant in error is that the evidence does not show the corpus delicti. While direct evidence of the corpus delicti is always desirable, it should not be held indispensable. To so hold, would, in many cases, give immunity to crime, especially in the class of cases to which this belongs. There is some conflict of authority; but we regard this as the better doctrine. If, however, circumstantial evidence is relied upon for this purpose, it should be such as to exclude all reasonable doubt. 1 Bish Crim. Proc. § 1071, and cases cited. In the case at bar, we have to deal with the admission of the prisoner. The general rule is that extrajudicial confessions of a prisoner are not sufficient to warrant a conviction, without proof aliunde of the corpus delicti; or, as it is sometimes stated, the prisoner's confession of the crime must be corroborated by other and independent evidence. Id.; Whart. Crim. Ev. § 632. We are of the opinion that there is sufficient evidence to show a larceny of ores from the Forest City mine. Whether the larceny was committed by the prisoner is an entirely distinct question for independent consideration. It is in evidence that the defendant, Roberts, was in the employ of the owners of the Forest City mine as shift boss; that one Barnes, Burnett, and Charles Roberts, a brother of the prisoner, were also in the employ of the same company, working under the prisoner in the mine; that Barnes introduced the prisoner to the assayer, Purce, as one who had ores to sell, about whom he had theretofore spoken to Purce; that an arrangement was then and there entered into between the prisoner and the assayer, by which the one was to supply certain ores, and the other was to extract the silver, and market the same, for a percentage agreed upon; that these arrangements were made secretly, at night, with pledges of square dealing, and with precautions against their conversation being overheard; that the ores were, a few days afterwards, delivered by the prisoner in a gunny sack at the office of the assayer at night, with precautions and admissions showing that it was a felonious transaction; that the ores were reduced during the night by Purce and the witness Seyler; that they proved very rich; that, when reduced to a bar, they were marketed by Purce, and the proceeds divided with the prisoner, according to agreement; that the prisoner, when he learned that he and Barnes and others had been indicted, advised Purce to leave the country; that samples of these ores were subsequently identified as ores from the Forest City mine by a number of witnesses familiar with and long accustomed to handle ores from that mine. This is but a summary of the evidence. There is much detail, which goes to show that the prisoner, together with Barnes, Burnett, and his brother, Charles Roberts, were engaged in the execution of a common design and plan to steal and sell ores from the Forest City mine, in the working of which they were employed. There can be no reasonable doubt that the ores delivered by the prisoner were stolen. There is equally no reasonable doubt that they came from the Forest City mine. The prisoner said they came from that mine, and he is corroborated by the identification of the ores as from that mine, and, the ores being stolen, by the inherent probabilities of the case, arising from his cor.nection with and access to the mine. Whether the larceny was committed by the prisoner or not, as we have said, is a distinct question. There is no direct evidence that the prisoner committed the larceny. No one saw him take the ores. Being small in bulk, and capable of easy concealment as soon as mined, in the nature of the case they would not be missed. The admission of the prisoner was to the effect that the ores had been given to him by Barnes, Burnett, and others employed in the Forest City mine. While the entire confession of a prisoner must be received, it is for the jury to say whether exculpatory facts contained in his confession are true. Whart. Crim. Ev. § 688. The admission of which we are speaking was made after the prisoner and his alleged conspirators were indicted, when he was expecting to be arrested, and the claim that the ores were given him by Barnes and others was well open to suspicion. The jury were at liberty to reject it, if, upon all the evidence, they believed beyond a reasonable doubt that the prisoner was guilty of the larceny. There was evidence tending strongly to show that the prisoner, Barnes, and others were engaged in the execution of a common plan to steal and sell from the ores they were engaged in mining. If so, there was co-responsibility, the act of the one was the act of the other, and each was equally guilty of the lar ceny. 1 Whart. Crim. Law, § 702. In this view, if the credibility of the witness be conceded, the perusal of the evidence leaves no reasonable doubt of the prisoner's guilt. If circumstantial evidence is to be relied upon at all in criminal cases, the finding of the jury in this case is not to be set aside as unwarranted. This proceeds upon the proposition that the witnesses for the prosecution, especially the witness Purce, are to be believed. The jury are the judges of the credibility of the witnesses, and, for obvious reasons, the best judges. The witness Purce was an accomplice. As a matter of theory, one charged with crime may be convicted upon the evidence of an accomplice alone. As a matter of practice, courts caution juries against reliance upon the testimony of accomplices, unless corroborated by independent evidence. Whart. Crim. Ev. § 441. The witness Purce is corroborated as to the prisoner visiting his assay office in the evening, at different times, once in company with Barnes, when they were in the back office, where the furnace was; as to his going along the street with a bundle under his arm, wrapped up in a newspaper, on the evening of the 10th of September; as to the contemporaneous reduction of Forest City ores in his shop at night, and their subsequent shipment to Denver; and as to the several meetings he had with the prisoner and others. The jury were the judges of his credibility. The court instructed them fully as to the caution they should exercise before relying upon the testimony of an accomplice. They evidently gave credit to his story, as detailed upon the witness stand, and we see no ground for saying they should not have done so. 5. We do not notice the instructions in detail. We have carefully examined them, and find nothing of which the prisoner is entitled to complain. In our opinion, they inform the jury fairly and fully as to the law applicable to the facts. These are all the errors regarded as demanding notice. The judgment of the court below must be affirmed. (75 Cal. 523) Nos. 11,732, 11,869.) In re FISHER'S ESTATE, (two cases. 1. APPEAL FAILURE TO TAKE, WITHIN STATUTORY PERIOD-JURISDICTION OF APPELLATE COURT. The fact that an appeal was too late under the statute goes to the jurisdiction of the appellate court, and the validity of a motion to dismiss such appeal will not be considered. 2. SAME-REVIEW-RULINGS ON EVIDEnce. On an appeal from an order refusing to change the record so as to show that a decree was in fact entered at a later date than appears from its face, where the affidavits of appellants' attorney and the clerk, as to the time of entering such decree, are directly in conflict, the conclusions of fact by the court below will not be disturbed. Commissioners' decision. Department 1. Appeal from superior court, Marin county; E. B. MAHON, Judge. S. L. Francis and E. A. Neale filed a petition for a partial distribution under the will of Catherine Fisher, deceased. The decree of the superior court was favorable to the executor, who was the husband of the testatrix. Notice of appeal was filed by the petitioners more than 60 days after the date of the decree; the statutory limit being 60 days. The petitioners claim that the minutes of the court below are erroneous, and the decree was actually entered later than such minutes show, and moved the court to change the record to that effect, which the court refused to do. The affidavits of appellants' attorney and the clerk of the superior court, as to the time of entering the decree, are directly in conflict. The petitioners appeal from the original decree, and from the refusal of the court to change the record. Vincent Neale, for appellants. Hepburn Wilkins, for respondent. HAYNE, C. The first appeal is from a decree of partial distribution. It was taken 62 days after the entry of the decree. This was too late. Code Civil Proc. § 1715; Estate of Burns, 54 Cal. 226; Estate of Harland, 64 Cal. 379, 1 Pac. Rep. 159; Estate of Burton, 64 Cal. 428, 1 Pac. Rep. 702. The argument as to the construction and constitutionality of the statute does not require refutation. The fact that the appeal was too late goes to the jurisdiction, and hence it is unimportant whether the motion to dismiss has lapsed or not. The second appeal is from an order refusing to change the records so as to show that the decree above mentioned was in fact entered at a later date than it shows on its face. We shall assume, without expressing any opinion on the point, that this order is appealable. In our view, however, the affidavit of the clerk is directly in conflict with that of the attorney for the appellant; and we cannot say that the court below came to a wrong conclusion as to the facts. We therefore advise that the appeal from the decree of partial distribution be dismissed, and that the order refusing to change the record be affirmed. PER CURIAM. For the reasons given in the foregoing opinion, the appeal from the decree of partial distribution is dismissed, and the order refusing to change the record is affirmed. (75 Cal. 539) MILLIKEN v. HOUGHTON et al. (No. 11,334.) (Supreme Court of California. April 20, 1888.) APPEAL REQUISITES-NOTICE-CODE CIVIL PROC. CAL. § 940. A judgment against several defendants was reversed, as to one of them, upon appeal of that one alone; and, on motion of such defendant and one of those not appealing, an execution theretofore issued on such judgment was quashed, and from the order quashing the execution plaintiff appealed. Held, under Code Civil Proc. Cal. § 940, providing that notice of appeal must be served upon the adverse party or his attorney, that, unless notice of appeal was served on all the defendants, the appellate court cannot take jurisdiction of the appeal. Department 1. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge. The plaintiff, J. M. Milliken, had obtained judgment against defendants, S. O. Houghton, the Hibernia Savings & Loan Society, F. H. Burke, R. P. Kelly, John Higgins, and P. Hannigan, which ordered the premises described in complaint to be sold to satisfy a street assessment. The judgment was appealed from by one defendant only, the Hibernia Savings & Loan Society, and as to said defendant was reversed. This appeal is from an order, made after final judgment, granting the motion of the defendants Houghton and the Hibernia Savings & Loan Society to quash the execution of the judgment, on the ground that the reversal of the judgment on the appeal of one defendant reversed it as to all. The notice of the appeal was served only upon the Hibernia Savings & Loan Society, and Houghton. J. M. Wood, (J C. Bates, of counsel,) for appellant. Tobin & Tobin and F. Thos. Barry, for respondents. SEARLS, C. J. This is an appeal from an order of the court below quashing a writ of execution on motion of two of the defendants, viz., S. O. Houghton and the Hibernia Savings & Loan Society Respondents the Hibernia Savings & Loan Society and S. O. Houghton moved to dismiss the appeal, upon the grounds that the other defendants in the cause, viz., F. H. Burke, R. P.. Kelly, John Higgins, and P. Hannigan, were not mentioned in the notice of appeal, and were not served therewith. Turning to the decree, we find that v.17p.no.7-41 it is against all of the defendants above named. The Hibernia Savings & Loan Society alone appealed to this court, and the judgment, as against it, was reversed. Upon the return of the case to the court below, plaintiff dismissed the action as to said last-named defendant, and thereupon procured an execution, with a copy of the decree attached, which was and is in all respects such as might have issued upon the decree as originally entered, except that it recites the appeal, reversal, and dismissal as to the defendant the Hibernia Savings & Loan Society. This writ was quashed by the court, on motion of the defendants as hereinbefore mentioned, and the notice of appeal therefrom is addressed to and served upon them only. The notice of appeal must be served upon the adverse party or his attorney. Code Civil Proc. § 940. The term "adverse party" has been held to include all the parties to the action having an interest to be affected by a reversal, and in O'Kane v. Daly, 63 Cal. 317, it was held that the notice of appeal by one of several co-defendants should be served, not only on the plaintiff, but also on the non-appealing co-defendants; they having an interest in the judgment to be affected by the reversal, (Senter v. De Bernal, 38 Cal. 640; Hiscock v. Phelps, 2 Lans. 118; Cotes v. Carroll, 28 How. Pr. 446; Thompson v. Ellsworth, 1 Barb. Ch. 627.) In Williams v. Mining Ass'n, 66 Cal 194, 5 Pac. Rep. 85, it was said: "This court has not jurisdiction to hear an appeal from a judgment, unless the appellant shall have served a notice of appeal on all the adverse parties; that is to say, upon all whose rights may be affected by a reversal of the judgment," etc. The defendants not served with the notice of appeal in this case are as directly interested in the affirmance or reversal of the order appealed from as are the two defendants who were served. it may be said the objection cannot come from the moving respondents here, as they can suffer no injury by appellant's failure to notify the other defendants. The answer is, the objection goes to the jurisdiction of the court to hear and determine the appeal; and the right to make the objection by any respondent before the court has been often recognized. Indeed, they are interested in having such judgment as may be rendered by this court binding upon all the parties whom after notice it can affect. It may well be that as the motion in the court below was by only two defendants, and one of them a party as to whom the action had been dismissed, it should have been denied, except as to the moving parties; or, if one only of them was interested, then only as to him. But, however this may be, the execution ran against all the defendants except the Hibernia Savings & Loan Society. It was quashed as to all of them, and the appeal is from the whole order. They are therefore all interested, and should have been served as respondents in the appeal. The appeal is dismissed. We concur: MCKINSTRY, J.; PATERSON, J. (75 Cal. 509) ZEIMER V. ANTISELL. (No. 9,824.) FACTORS AND BROKERS-REAL-ESTATE AGENTS-COMMISSIONS. A broker authorized to sell a tract of real estate called the attention of the purchaser to the same, and received an offer from him, which was less than he was authorized to accept. After the expiration of the broker's authority, such purchaser bought said tract of real estate from the owner, paying a price greater than he had originally offered. Held, that the broker was not entitled to commissions on such sale.1 Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; JOHN F. FINN, Judge. 1 Respecting the rights of real estate brokers, and when their commissions are earned, see Jarvis v. Schaefer, (N. Y.) 11 N. E. Rep. 634; Robinson v. Kindley, (Kan.) 12 Pac. Rep. 587; Ratts v. Shepherd, (Kan.) 14 Pac. Rep. 496. |